Parkway Florist, Inc.

National Labor Relations Board - Administrative Judge Opinions

May 30, 2019

06-CA-209583 (N.L.R.B. May. 30, 2019)

JD−46−19
Pittsburgh, PA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
PARKWAY FLORIST, INC.,
and Case 06–CA–209583
JO ANN VAUGHN, an Individual.
PARKWAY FLORIST, INC.,
and Case 06–CA–217020
PAUL CAVALERO, an Individual.
Supplemental Decision
DAVID I. GOLDMAN, ADMINISTRATIVE LAW JUDGE. On December 12, 2018, I issued a
decision and recommended order in the above-captioned matter. In that decision I dismissed
the General Counsel’s allegations that the Respondent’s terminations of Charging Party Jo Ann
Vaughn and Charging Party Paul Cavalero, and the reduction in hours of work for Cavalero,
violated the Act. I found, as alleged by the General Counsel, that the Respondent violated the
Act by interrogating an employee about her and other employees’ cooperation with the Board’s
investigation into the unfair labor practice charge filed over Vaughn’s discharge.
In the absence of exceptions, on February 5, 2019, the Board issued an order adopting
the findings and conclusions in my decision and ordering the Respondent to comply with the
recommended order.
On March 4, 2019, the Respondent filed an application for legal fees and other expenses
under the Equal Access to Justice Act (EAJA), and Section 102.43 of the Board’s Rules and
Regulations. By order of the Board issued March 6, 2019, the matter was referred to me for
appropriate action. Counsel for the General Counsel filed an opposition to the Respondent’s
application on May 6, 2019. No reply was filed.
Analysis
As set forth in Section 102.143 of the Board's Rules and Regulations, EAJA provides
that a “respondent in an adversary adjudication who prevails in that proceeding, or in a
significant and discrete substantive portion of that proceeding and who otherwise meets certain
eligibility requirements” (relating to net worth, number of employees, etc.) “is eligible to apply for
an award of fees and other expenses.” An eligible applicant may receive an award “unless the
position of the General Counsel over which the applicant prevailed was substantially justified.”
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Board Rules and Regulations 102.144. “The burden of proof that an award should not be made
to an eligible applicant is on the General Counsel, who may avoid an award by showing that the
General Counsel’s position in the proceeding was substantially justified.” Id.
In considering an application under EAJA it is important to understand the meaning the 5
Board ascribes to the term “substantially justified.” As explained in In re Meaden Screw
Products, Co., 336 NLRB 298, 300 (2001), quoting Galloway School Lines, 315 NLRB 473
(1994), “The Board has stated that substantial justification does not mean substantial probability
of prevailing on the merits, and that it is not intended to deter the agency from bringing forward
close questions.” As the Board has explained in In re David Allen Co., 335 NLRB 783, 784–785 10
(2001):
The United States Supreme Court, in Pierce v. Underwood, 487 U.S. 552 fn. 2
(1988), defined the phrase “substantially justified” as meaning “justified to a
degree that could satisfy a reasonable person” or “justified if a reasonable person 15
could think it correct, that is, if it has a reasonable basis in law and fact.” Further,
the fact that the Government did not prevail on the merits does not give rise to a
presumption that its position was unreasonable, and the “substantially justified”
standard does not require the Government to establish that its decision to litigate
was based on substantial probability of prevailing. Carmel Furniture Corp., 277 20
NLRB 1105, 1106 (1985). The Government's position can still be deemed
reasonable in fact and law notwithstanding that the General Counsel failed to
establish a prima facie case. Id. However, where the General Counsel presents
evidence which, if credited by the factfinder, would constitute a prima facie case
of unlawful conduct, the General Counsel's position is deemed to be substantially 25
justified within the meaning of EAJA. SME Cement, Inc., 267 NLRB 763 fn. 1
(1983). Credibility issues which are not subject to resolution by the General
Counsel in the investigative stage of a proceeding on the basis of documents or
other objective evidence are, in the first instance, the exclusive province of the
administrative law judge. Accordingly, where the General Counsel is compelled 30
by the existence of a substantial credibility issue to pursue the litigation, and
thereafter presents evidence which, if credited, would constitute a prima facie
case, the General Counsel's case has a reasonable basis in law and fact and is
substantially justified. Barrett's Contemporary & Scandinavian Interiors, 272
NLRB 527 (1984).35
Finally, the fact that the General Counsel’s arguments “ultimately proved to be
unpersuasive is insufficient to sustain the application” under EAJA where the arguments “were
not insubstantial.” Europlast, Ltd., 311 NLRB 1089, 1089 (1993). Where “it was possible to
draw a set of inferences from the circumstances . . . that would have supported the General 40
Counsel's position, . . . the General Counsel's arguments ha[ve] a reasonable basis in law and
fact and [are] therefore substantially justified within the meaning of the Equal Access to Justice
Act.” Id.; Meaden Screw Products Co., 336 NLRB 298 302–303 (2001) (the General Counsel's
litigation position is substantially justified where it is possible to draw a set of inferences that
would have supported the General Counsel's position).45
In its application, the Respondent contends that the allegation that Vaughn was
discharged as a result of protected and concerted activity was dismissed because the General
Counsel “failed to present any evidence or testimony that Jo Ann Vaughn engaged in any
protected concerted activity,” and that “[b]ased on the fact that Jo Ann Vaughn did not engage in 50
any protected concerted activity the Region was unable to carry its burden regarding the charge
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and the charge was resolved wholly in favor of Parkway Florist.” Application at ¶¶ 7–8. See
also application at ¶15 (“General Counsel’s position in the proceeding involving Jo Ann Vaughn
was not substantially justified in that the Region presented no evidence that Jo Ann Vaughn
engaged in any protected concerted activity, which was the fundamental basis for the charge”).
5
The Respondent is incorrect. To the contrary, as I found, the evidence showed that the
employees, including Vaughn, engaged in discussion among themselves regarding their
treatment by the Respondent’s owner, Cheryl Bakin, and that this employee discussion
constituted concerted and protected activity. Moreover, as I found, Vaughn engaged in
protected and concerted activity during the very incident that led to her discharge—her 10
intervention in the angry exchange between Respondent’s owner Cheryl Bakin and Vaughn’s
coemployee Paul Cavalero on Friday, October 20, 2017, where Vaughn made a comment to
Bakin about Bakin’s treatment of employees that I found “constitutes protected concerted
activity.” ALJD at 8. This altercation on Friday afternoon was inextricably bound up in Vaughn’s
discharge Monday morning as soon as she returned to the store. Based on this, I found that 15
“the first two prongs of the General Counsel’s [burden under the] Wright Line test are easily
satisfied.” Id. Thus, the premise of the Respondent’s EAJA application is flatly incorrect. The
General Counsel alleged and proved that Vaughn engaged in protected activity.
Although the Respondent does not assert it as specific grounds for finding that the 20
General Counsel was not substantially justified in bringing the complaint, I went on to dismiss
the allegation of Vaughn’s unlawful discharge, based on my finding that evidence did not prove
that animus to Section 7 rights contributed to the Respondent’s motive for the discharge. In
doing so, I rejected the General Counsel’s contention that the timing of Vaughn’s discharge
provided a basis on which an inference of animus should be drawn. Nevertheless, there is no 25
question that the timing of the discharge—Vaughn was discharged first thing Monday a.m., as
soon as she returned to work after the confrontation with Bakin involving protected activity on
the previous Friday afternoon—was facially suspicious and provided a reasonable factual basis
on which to allege discrimination. My rejection of the contention turned on my full evaluation of
the facts involved with the incident leading to Vaughn’s discharge, including my evaluation of 30
Bakin’s testimony explaining her reasons for the discharge. Similarly, my rejection of the
General Counsel’s contention of pretext in the discharge involved consideration of Bakin’s
testimony and explanation for the discharge of Vaughn. Under these circumstances, and
although the General Counsel’s allegations were not sustained, I find that the General Counsel
was “substantially justified” in prosecuting the case within the meaning of EAJA.35
With regard to Cavalero’s reduction of hours and subsequent discharge, the General
Counsel alleged that the January 2018 reduction in hours, and then his discharge in March
2018, were motivated by his involvement in the Region’s unfair labor practice investigation of
Vaughn’s discharge, and alternatively, by his own protected and concerted activity. The 40
Respondent contends in its EAJA application that the
general counsel’s position in the Paul Cavalero matter was not substantially
justified, as general counsel failed to present any evidence that Parkway Florist,
Inc. knew, at any point in time, about Paul Cavalero’s involvement with the Jo 45
Ann Vaughn investigation.
Application at ¶16.
50
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However, while I dismissed the case over the Respondent’s treatment of Cavalero, I
disagree with the Respondent’s characterization of the evidence. While the General Counsel
failed to prove by a preponderance of evidence that the Respondent knew of Cavalero’s
activities in support of the Region’s investigation, it is not correct that the General Counsel failed 5
to present any evidence to that effect.
Cavalero gave an affidavit to the Region during and in support of Jo Ann Vaughn’s
discharge case against the Respondent. While there was no direct evidence that the
Respondent knew of Cavalero’s involvement, such is not uncommon, and absolutely no bar to a 10
successful prosecution of a case. Circumstantial evidence is often the basis for a finding of
discrimination, including knowledge of protected activity by a respondent. BMD Sportswear
Corp., 283 NLRB 142 (1987), enfd. 847 F.2d 835 (2d Cir. 1988); Montgomery Ward & Co., 316
NLRB 1248, 1253 (1995), enfd. 97 F.3d 1448 (4th Cir. 1996).
15
Here, the General Counsel relied on circumstantial evidence to support the contention
that the Respondent knew of Cavalero’s activities. The General Counsel relied, most strongly,
on two pieces of evidence. One was the fact that Bakin unlawfully interrogated another
employee, Chisolm, in an effort to find out who was assisting the Region in the investigation into
Vaughn’s discharge. Although I rejected the argument that knowledge of Cavalero’s 20
participation should be inferred from this unlawful interrogation, it was a plausible circumstantial
argument. As I noted, this is a small store, there were very few employees, and Cavalero was
the major participant in the October 20 confrontation that led to Vaughn’s discharge. Indeed,
Cavalero was much more central to and aggressive in the dispute than Vaughn—so it is not
unreasonable that the General Counsel would contend that Bakin suspected that Cavalero was 25
the employee cooperating with the Region in the Vaughn investigation. While I found the
General Counsel’s argument regarding the unlawful interrogation of employee Chisolm
unconvincing to raise an inference that the Respondent suspected Cavalero’s involvement, it
certainly proved that Bakin was not indifferent to who was cooperating with the Region—that is
precisely what she wanted to know from Chisolm. Indeed, I speculated, and believe now, that 30
she may well have figured out that it was Cavalero, although I did not and do not believe that
the General Counsel met his burden prove it.
The General Counsel also relied on the timing of Cavalero’s reduction in hours—which
occurred less than a month after the unlawful interrogation—as evidence that the Respondent 35
knew that Cavalero was involved in the protected activity of participating in the Board’s
investigation. Again, this was not implausible. The General Counsel did prove—it was
undisputed—that Cavalero engaged in protected activity by providing the Board with a pretrial
affidavit as part of and in support of the Vaughn discharge case, and he did, in fact, tell another
employee about it—Chisolm—the same employee who was unlawfully interrogated on the 40
subject by the Respondent’s owner Bakin. Moreover, soon thereafter, his hours were reduced,
and as far as the record shows, the reduction was unexpected and unprecedented. However, I
rejected the General Counsel’s argument based on my crediting of the alternative explanations
for the reduction in hours provided by Bakin at the hearing. Thus, I rejected the General
Counsel’s timing argument “given that Bakin provides other reasonable explanations for the 45
timing of the reduction in hours, and given, again, that the evidence is that Bakin did not learn of
Cavalero’s involvement with the Board through the interrogation.” ALJD at 19.
In other words, this contention of the General Counsel’s failed, but failed based on my
assessment of Bakin’s testimony. Had she come to the hearing and testified differently, or not 50
testified at all, the case may have looked different. But the fact that the merits of this argument
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turned on Bakin’s testimony at the hearing renders this the opposite of a case that, for EAJA
purposes, the General Counsel was not “substantially justified” in bringing.1
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended25
ORDER
The application of Parkway Florist, Inc., for attorneys’ fees and other expenses under the 10
Equal Access to Justice Act is denied.3
Dated, Washington, D.C. May 30, 2019
15

David I. Goldman
U.S. Administrative Law Judge
20

1As to the allegations of unlawful motive for Cavalero’s discharge in March 2018, while
dismissed, these allegations were alleged by the General Counsel in follow-up to and
conjunction with the allegations that his hours of work had been recently unlawfully reduced in
January 2018. Had the allegations of unlawfully motivated reduction of hours in January been
sustained. the allegations of unlawful discharge two months later would have looked
considerably different.
2If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the
Rules, be adopted by the Board and all objections to them shall be deemed waived for all
purposes.
3In his opposition to the Respondent’s application, Counsel for the General Counsel raises
several objections to the Respondent’s application based on the rates sought, the nature, and
the timing of some of the fees and expenses for which recovery is sought, and the lack of detail
of the proffered billing records. Given my resolution of the merits of the EAJA application, I do
not reach these objections to the specifics of the recovery sought by the Respondent.
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